In addition to utilizing the West Virginia State Building Code (WVSBC), municipalities1 and counties2 may enact local ordinances to regulate unsafe properties. The West Virginia Code enables local governments to regulate unsafe structures as follows:
- Section 7-1-3ff allows counties to regulate unsafe and unsanitary structures.
- Section 8-12-16 allows municipalities to regulate the repair, closing, or demolition of dwellings or buildings unfit for human habitation.
When adopting such an ordinance, local governments must designate an enforcement agency. County enforcement agencies must consist of the county engineer; county health official (or designee); fire chief; county litter control officer; two at-large members selected by the county commission; and the sheriff, who shall serve as an ex officio member.3 Municipal enforcement agencies must consist of the Mayor, the municipal engineer or building inspector, and one at-large member.4 The county health officer and fire chief must serve as ex officio members on a municipal enforcement agency.5
Neither of the unsafe property code sections provide specific standards for how communities are to regulate unsafe buildings. Instead, both sections state, “Any ordinance adopted . . . must provide . . . standards deemed necessary to guide the enforcement agency, or its agents, in the investigation of dwelling or building conditions, and in conducting hearings.”6
Note that “buildings utilized for farm purposes on land actually being used for farming” are exempt from being regulated by county unsafe property ordinances, but not from being regulated by municipal unsafe property ordinances or the WVSBC.7
No Prerequisites
All municipalities and counties in West Virginia have the authority to create ordinances regulating unsafe properties
Advantages
- Local governments can address structures in poor condition and not fit for human habitation
- Not necessary for local government to hire additional personnel
- Allows communities to adopt unique standards to regulate buildings
Disadvantages
- Unlike the WVSBC, unsafe property ordinances do not require following industry standards, which include the utilization of commonly accepted construction practices, standards, and materials
- Required enforcement agency may not have the technical expertise to determine whether a particular building is structurally sound or fit for human habitation
- Does not require certification or training to enforce its provisions, unlike the WVSBC
- Communities’ unique standards can be inconsistent and create confusion for developers
- If standards are similar to the WVSBC, which is the only building code allowed in West Virginia, the ordinance risks being invalidated
- Lack of clear standards increases the likelihood of litigation based on the standards being arbitrary
Funding
Similar to communities that have adopted the building code, communities with ordinances under Sections 8-12-16 or 7-1-3ff may place liens to recoup the cost of fixing unsafe properties.8 See chart on liens below detailing this process. Municipalities and counties may also institute a civil action for their expenses, including attorney’s fees and court costs.9 In addition, county commissions are authorized “to receive and accept grants, subsidies, donations and services in kind consistent with the objectives of [West Virginia Code Section 7-1-3ff].”10
Usage in West Virginia
Several communities around the state have adopted unsafe property ordinances. However, confusion remains as to the difference between these ordinances and the WVSBC. It is important for local governments to understand that unsafe property ordinances and the WVSBC are two separate provisions with different requirements.
The WVSBC outlines what building materials to use, how structures should be built, instructions on how to identify building code violations, how to remedy violations, and a process for notice of violations. The WVSBC provides additional framework for a community, as well as providing some certainty for the local government, property owner, and developer. The WVSBC also requires that any local code enforcement officer enforcing the state building code be certified and attend annual continuing education classes.11 By comparison, ordinances to regulate unsafe properties do not require any certification or training of those enforcing the ordinances, do not explain what specifically constitutes a violation, and lack many standards and processes that are found in the WVSBC.
For more detailed information on the WVSBC, see Section on the Building Code.
Notification Requirements & Special Procedures
Equitable rules of procedure must guide the enforcement agencies in the investigation of dwellings and in conducting hearings.12 Prior to enacting or enforcing an ordinance, local governments should review Sections 7-1-3ff and 8-12-16 in detail for necessary procedural steps.
Municipalities
Under a municipal unsafe property ordinance, either the enforcement agency or
the State Fire Marshal may order a property owner to pay the costs of repairing
or demolishing a structure.13 See chart on lien process and Section on Demolition Liens.
In order to institute a civil action, a municipality must first provide notice to the owner at least ten days prior by certified mail of its intention to file suit.14 If the property owner does not receive the notice by certified mail, the municipality must then place a legal advertisement in a generally circulating newspaper and post notice on the property.15
A property owner is entitled to (1) an appeal to the circuit court for a temporary injunction to restrain the municipal enforcement agency16 and (2) a hearing within 20 days of an enforcement agency order.17
Counties
Under a county unsafe property ordinance, complaints are initiated by citation
from the county litter control officer or by petition of the county engineer, at
the direction of the county enforcement agency.18 Complaints must be brought before the county commission, and the commission
must give notice of the complaint to the property owner.19
How to Create, “Perfect,” and Enforce Unsafe Properties Liens:
| Municipalities | County Comissions | |
| Create the Lien | “[F]ile a lien against the real property in question for an amount that re ects all costs incurred by the municipality for repairing, altering or improving, or of vacating and closing, removing or demolishing any dwelling or building . . . .”23 |
“A civil proceeding may be brought in circuit court by the county commission against the owner or owners of the private land or other responsible party that the subject matter of the order of the county commission to subject the private land in question . . . [t]o a lien for the amount of the contractor’s costs in making these ordered repairs, alterations or improvements or ordered demolition, removal or clean up, together with any daily civil monetary penalty imposed . . . .”24 |
| "Perfect the Lien" | Record the lien in the clerk’s office of the county where the property is located.25 |
Record the lien in the clerk’s office of the county where the property is located.26 |
| Enforce the Lien | “[I]nstitute a civil action . . . against the landowner or other responsible party for all costs incurred,” with notice provided to the owner at least 10 days prior to commencing such an action.27 |
File a complaint with the circuit court “to order and decree the sale of the private land in question to satisfy the lien.”28 |
1 W. Va. Code Ann. § 8-12-16 (West 2015).
2 Id. § 7-1-3ff.
3 Id. § 7-1-3ff(c) (instead of the county engineer, the county may appoint a “technically qualified county employee or consulting engineer”).
4 Id. § 8-12-16(b).
5 Id.
6 Id. §§ 7-1-3ff(e), 8-12-16(c).
7 Id. § 7-1-3ff(a).
8 Id. § 8-12-16(e)(1).
9 Id. § 8-12-16(e)(2).
10 Id. § 7-1-3ff(i).
11 W. Va. Code R. § 87-7-4 (2013).
12 W. Va. Code Ann. §§ 7-1-3ff(e), 8-12-16(c) (West).
13 Id. § 8-12-16(d).
14 Id. § 8-12-16(f).
15 Id. § 8-12-16(g).
16 Id. § 8-12-16(j).
17 Id. § 8-12-16(k).
18 Id. § 7-1-3ff(f)(1).
19 Id. § 7-1-3ff(f)(2).
20 Id. § 7-1-3ff(f)(3).
21 Id. § 7-1-3ff(f)(4).
22 Id. § 7-1-3ff(f)(6).
23 Id. § 8-12-16.
24 Id. § 7-1-3ff.
25 Id. § 38-10C-1.
26 Id.
27 Id. § 8-12-16(e)(2), (f).
28 Id. § 7-1-3ff(h); see City of Parkersburg v. Carpenter, 203 W. Va. 242, 244, 507 S.E.2d 120, 122 (1998).